Dark Patterns, Enforcement, and the emerging Digital Design Acquis: Manipulation beneath the Interface

Abstract

The term ‘dark patterns’ is commonly used to describe manipulative techniques implemented into the user interface of websites and apps that lead users to make choices or decisions that would not have otherwise been taken. Legal academic and policy work has focussed on establishing classifications, definitions of dark patterns, constitutive elements, and typologies of dark patterns across different fields. Regulators have responded to this issue with several enforcement decisions related to data protection and privacy violations, and with rulings protecting consumers. Accordingly, this article analyses the appropriateness of regulatory oversight of designers and platforms that deploy dark patterns inside digital technologies. By further analysing design techniques, we conclude this type of deceptive design is inappropriately attributed to the user interface when some patterns are embedded in the system architecture. With this in mind, the article also analyses the emerging digital design acquis of the European Union. The Digital Markets Act and Digital Services Act, the proposals for a new Data Act and AI Act are critiqued for suitability of regulating deceptive design over the entirety of, what we coin, the deceptive design visibility spectrum.